[2017] KEELRC 1704 (KLR)

REPUBLIC OF KENYA

EMPLOYMENT AND LABOUR RELATIONS COURT

AT NAIROBI

CAUSE NO. 1779 OF 2015

(Before Hon. Justice Hellen S. Wasilwa on 28th February, 2017)

HARRIET OTIENO................................................1ST CLAIMANT

PHYLLIS NYAIDHO..............................................2ND CLAIMANT

RUEBEN NJOROGE MITHAMO........................3RD CLAIMANT

VERSUS

MY JOBS EYE KENYA LIMITED........................RESPONDENT

RULING

1. The Notice of Motion application before Court is the one dated 25. 7.2016 filed under Certificate of Urgency by the Applicants herein on even date.

2. The Applicants filed this application under Article 59 of the Constitution 2010, Section 13(4) of the Industrial Court (Procedure) Rules 2010, Section 90 of Employment Act No. 20 of 2011 and all other enabling powers and provisions of the law.

3. They seek orders:

1. That the service of this application be dispensed with in the first instance and the same be heard ex parte due to the urgent nature of the prayers sought.

2. That pending the hearing of this application inter partes, the Honourable Court does hereby stay proceedings in the suit.

3. That this Honourable Court be pleased to enlarge the time within which the Applicant is to file and serve its Response to Statement of Claim.

4. That this Honourable Court does set aside its decision of 28th June 2016 striking out the Applicant’s Memorandum of Response and the said Memorandum of Response be deemed duly filed and served.

5. That in the alternative, the Applicant be granted leave to file a response to the Claimants’ statement of claim dated 18th July 2016 within such time as the Honourable Court may think fit.

6. The Applicant be allowed to defend the suit unconditionally.

7. The costs of this application be in the cause.

4. The application is supported by the annexed affidavit of Moyez Sadrudin Hirji Alibhai and on the following grounds:

1. Although the Applicant duly sought and was granted leave by the Honourable Court to file its Response to the Statement of Claim by 3rd June 2016, the Applicant was only able to file its memorandum of response on 9th June 2016 due to no fault on the part of the Applicant.

2. The failure by the Applicant to file its response within the time directed by the Honourable Court was not deliberate but owing to the fact that the Court file went missing from the Registry and the Applicant’s Response could not be accepted at the Registry without the file.

3. The Applicant made every effort to file its response within the timelines directed by the Honourable Court and was ready to file the same by the 03/06/2016 but for the fact that the Court file could not be traced.

4. Notwithstanding the foregoing, the Applicant exercised due prudence and filed the Response by 9th June 2016 when the file was available in the Court Registry.

5. There was no inordinate delay on the part of the Applicant in filing the Response as the same was filed expeditiously upon the file being availed at the Registry.

6. That although the matter came up for hearing on 16th June 2016, the Court was not sitting as a result of which parties were to fix another date at the Registry.

7. The Honourable Court’s decision of 28/06/2016 to strike out the Applicant’s response was arrived at without according the Applicant an opportunity to respond to the Claimants’ application as the Applicant was not aware of the fact that the file was coming up in Court having not been informed of the same.

8. The hearing of 28/06/2016 was fixed by the Claimants without inviting or notifying the Applicant of the same and the Applicant only learnt of the same upon perusal of the Court file on 19/07/2016.

9. The Applicant only leant of the fact that its response had been struck out on the 19/06/2016 when its advocate turned up in Court upon learning that the matter was listed in the day’s cause list although the Advocate had not been served with a notice of hearing of the same.

10. That the Claimants apparently fixed the matter for hearing on two occasions and omitted to notify the Applicant’s Advocate on record for reasons unknown to the Applicant and obviously calculated at leaving the Applicant out of the proceedings.

11. That it is extremely unfair and prejudicial to the Applicant for the Claimants to be allowed to proceed in the manner they did to the detriment of the Applicant.

12. That at the very least, the Claimant’s advocate should have notified the Applicant of the fact that they had taken dates ex parte in the matter instead of sneaking on the Applicant.

13. The Applicant has a good Response to the Claimants’ Claim and it is only fair and just that the Applicant is given an opportunity to defend the claim.

14. The Response to Statement of Claim is meritorious, arguable and it raises triable issues.

15. The Applicant shall suffer great prejudice if the matter is allowed to proceed unopposed as it shall be condemned unheard thus breach of the rules of natural justice and render this application nugatory.

16. That the Honourable Court should be inclined to dispense substantive justice without too much emphasis on technicalities.

17. The Applicant has come to Court with clean hands and the claimants do not stand to suffer any prejudice.

18. It is in the interests of justice that the application herein is allowed.

5. The gist of this application stems from the orders of the Court ordering this claim to proceed as undefended on 2. 6.2016 and the subsequent striking out of a defence filed without leave.

6. The defence was filed on 9. 6.2016 after the orders of 2. 6.2016.

7. The Respondents now seek reinstatement of the defence.

8. The Claimants opposed this application and they contend that the Respondent should not be allowed to participate in these proceedings as they have demonstrated their intention to delay justice in the matter.

9. The Claimants have given a brief chronology of the events in the suit by stating that the case was filed on 5. 10. 2015 and summons served upon Respondent on 12. 10. 2015.

10. The Respondents instructed Michuki & Michuki Advocates to enter appearance on 22. 10. 2015. Upon entering appearance, the Respondent never put in a Response.

11. The case came up for mention on 19. 5.2016 but on 18th May 2016, the Respondent had instructed Muumbi & Company Advocates to come on record.

12. On 19th May 2016 when matter came up for mention before Hon. Nzioki Wa Makau J, the Respondent were given 14 days to file their response and matter was to come for mention on 2. 6.2016. On 2. 6.2016, the Respondents had not filed their response and they failed to turn up in Court. It is when the Court ordered that matter proceeds undefended on 16. 6.2016.

13. In the meantime, Respondent proceeded to file a defence on 9. 6.2016 without leave of Court which the Court struck out.

14. The Respondent have submitted that they shall suffer prejudice if the matter is allowed to proceed unopposed as they shall be condemned unheard.

15. I have considered the averments of both parties. I note the delay occasioned by the Respondent in filing their defence and out of time. However I also take cognizance of the fact that a man should not be condemned unheard. This is a rule of natural justice. Article 159 of the Constitution also mandates the Court to decide matter without undue reliance on technicalities.

16. I will therefore exercise my discretion and allow the Response filed by the Respondent to be on record and have the case set down for hearing interpartes.

17. Costs in the cause.

Read in open Court this 28th day of February, 2017.

HON. LADY JUSTICE HELLEN WASILWA

JUDGE

In the presence of:

Akwara for Claimant – Present

No appearance for Respondent